Freshour v. Turner

• Decision Date: 14 April 1972
• Docket Number: No. A--17398,A--17398
• Citation: 496 P.2d 389
• Parties: Linda FRESHOUR, Petitioner, v. Bob TURNER, Sheriff, Oklahoma County, Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 389

496 P.2d 389

Linda FRESHOUR, Petitioner, v. Bob TURNER, Sheriff, Oklahoma County, Oklahoma, Respondent.

No. A--17398.

Court of Criminal Appeals of Oklahoma.

April 14, 1972.

Syllabus by the Court

1. An infant who had committed a criminal act prior to 1941, and had not reached his sixteenth birthday on the date of commission of the offense, was entitled to a certification hearing in Juvenile Court. If, prior to 1941, he had passed his sixteenth birthday at the time of commission of the alleged offense, no Juvenile Division proceedings are required.

2. An infant who committed a criminal act between 1941 and March 16, 1972, and had not reached his fourteenth birthdate on the date of the commission of the alleged offense, must have a certification hearing in Juvenile Court to determine if he or she should be held accountable for his or her acts. If, between 1941 and March 16, 1972, they had passed their fourteenth birthdate at the time of commission of the criminal act, it is legally presumed they knew the wrongfulness of their acts, and no Juvenile Proceedings are required.

3. An infant who committed a criminal act between March 16, 1972, and April 4, 1972, at the hour of 4:00 p.m., and had not reached his or her fourteenth birthdate on the date of the commission of the alleged offense must have a certification hearing in Juvenile Court to determine if he or she should be held accountable for his or her acts. If, between March 16, 1972, and 4:00 p.m., April 4, 1972, they have passed their fourteenth birthdate at the time of commission of the criminal act, it is legally presumed they knew the wrongfulness of their acts and no juvenile proceedings are required.

4. An infant who commits a criminal act after the hour of 4:00 p.m., April 4, 1972, and has not reached his eighteenth birthdate at the time of commission of the offense, must have the statutory certification hearing in Juvenile Division. If he has passed his eighteenth birthdate at the time of the criminal act, it is legally presumed that he knew the wrongfulness of his act and no Juvenile Division proceedings are required.

An original proceeding in which Linda Freshour seeks Writ of Habeas Corpus. Writ denied.

T. Hurley Jordan, Asst. Public Defender, Oklahoma County, for petitioner.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., for respondent.

SIMMS, Judge:

This is an original proceeding wherein petitioner alleges she is being illegally proceeded against in a criminal action in the District Court of Oklahoma County as an adult without having been previously certified by the Juvenile Division of that Court in accordance with 10 O.S.1971, § 1112. The date of the alleged offense was March 28, 1972, and on said date, petitioner was a seventeen-year-old female.

By way of background, the United States Court of Appeals, Tenth Circuit, in Lamb v. Brown, 456 F.2d 18, struck down as unconstitutional 10 O.S.Supp.1969, § 1101(a) because of age discrimination between the sexes. The date of this opinion, it must be emphasized, was March 16, 1972, and before the alleged criminal offense committed by petitioner.

On March 27, 1972, in Schaffer v. Green, District Judge, Okl.Cr., 496 P.2d 375, again prior to the alleged offense in this case, we declared unconstitutional 10 O.S.1971, § 1101A, for the identical reasons specified by the Tenth Circuit in Lamb v. Brown, supra, and for the additional reasons as spelled out in Schaffer v. Green, supra. It should be noted the definition of 'delinquent child' in 10 O.S.1971, § 1101A was verbatim to the unconstitutional provisions in 1101(a).

The net effect of the two decisions above cited was to leave the Children's Code devoid of any age definition of 'child' or 'delinquent child,' or any legally established age at which a person must have a hearing in Juvenile Division of the District Court before being certified for adult proceedings.

Title 10, O.S.1971, § 1112(b) provides:

'If a child is charged with delinguqncy as a result of an offense which would be a crime if committed by an adult, the court, after full investigation and a preliminary hearing, may in its discretion continue the juvenile proceeding, or It may certify such child capable of knowing right from wrong, and to be held accountable for his acts, for proper criminal proceedings to any other division of the court which would have trial jurisdiction of such offense if commited by an adult.' (Emphasis Added)

Therefore, by the very provisions of the Children's Code, the test to be applied in ascertaining whether the child will remain under the provisions of the Code or be certified to be proceeded against as an adult is the test of knowing right from wrong and accountability.

As we pointed out in Schaffer, supra, the only remaining non-discriminatory, and therefore constitutional, statute within our entire code pertaining to the age of presumed accountability was 21 O.S.1971, § 152, which provides in part:

'All persons are capable of committing crimes, except those belonging to the following classes:

2. Children over the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, They knew its wrongfulness.' (Emphasis Added)

It logically follows that the legal yardstick used to determine whether or not a person shall be prosecuted as an adult under either 21 O.S.1971, § 152 or 10 O.S.1971, § 1112, is knowledge of wrongfulness of the act.

A careful study of the Children's Code, Title Ten, Reveals that 10 O.S.1941, § 101, which was repealed in 1968, and superceded by 10 O.S.Supp.1968, § 1101 et seq., defined delinquent child to be 'any male child under the age of sixteen years and any female child under the age of eighteen years who violates any law, (etc.)' However, prior to 1941, the definition of 'delinquent child' included Any child under the age of 16 years.

In apparently construing both the provisions in Title 21 and Title 10, at a time when there was no discriminatory provisions, this Court said in Ex parte Barton, et al., 32 Okl.Cr. 41, 239 P. 944 (1925):

'In this state a minor over the age of 16 years is presumed to be responsible for his criminal acts. The time of infancy is usually divided into three parts, during each of which a different presumption as to criminal responsibility prevails. Children under the age of 7 years are conclusively presumed to be incapable of commiting crime; children over the age of 7 years and under the age of 16 years are presumed to be incapable of committing crime, except where it is affirmatively shown in a juvenile proceeding that the child knew or comprehended the wrongfulness of his act or acts. Over the age of 16 the infant is presumed to knew the consequences and import of his criminal acts, and to be responsible therefor. In some cases this may be a rebuttable presumption, but the burden of proving incapacity during this period is on the infant defendant.' (Emphasis Added)

The conclusion is therefore inescapable that legislation fixing arbitrary ages at which infants must undergo a Juvenile Court hearing to determine if that infant knew the wrongfulness of his act, as well, fixes an age where the infant is presumed to be responsible for criminal acts as an adult would be.

Petitioner asserts that even though she was 17 years of age at the time of commission of the alleged offense of March 24, 1972, she should receive the benefits of Enrolled House Bill Number 1705, amending 10 O.S.1971, § 1101, which became law on April 4, 1972, at the hour of 4:00 p.m. Enrolled House Bill Number 1705 defines the term 'child' to mean any person under the age of eighteen years.

We note there is nothing contained within either the title to the act or within House Bill Number 1705 itself making the particular act retroactive. It is well established that unless a legislative enactment by its very own language is to apply retroactively, it can apply prospectively only. Acme Oil & Gas Co., Limited, et al. v. Cooper, Judge, 168 Okl. 346, 33 P.2d 191; Baker & Strawn v. Magnolia Petroleum Co., 124 Okl. 94, 254 P. 26, 82 C.J.S. Statutes § 319.

Conceding, however, that generally speaking, such a statute might apply to proceedings pending in District Court before trial, we need only observe the clear and unequivocal language of 10 O.S.1971, § 1112:

'If, during the pendency of a criminal or quasi-criminal charge against any person, it shall be ascertained that the person was a Child at the time of committing the alleged offense, the court shall transfer the case, together with all the papers, documents and testimony connected therewith, to the juvenile division of the court.' (Emphasis Added)

At the time petitioner is alleged to have committed the offense with which she stands charged, the sole constitutional and non-discriminatory statute governing the age at which infants were legally presumed to know the wrongfulness of a criminal act was 21 O.S.1971, § 152. Petitioner, therefore, being above the age of 14 at the time of commission of the alleged offense, is not therefore entitled to invoke the provisions of Enrolled House Bill Number 1705, and is not legally entitled to a formal adjudication in the Juvenile Division of District Court before she can be prosecuted as an adult.

We, therefore, conclude the following:

(1.) An infant who had committed a criminal act prior to 1941, and had not reached his sixteenth birthdate on the date of commission of the offense, was entitled to a certification hearing in Juvenile Court. If prior to 1941, he had passed his sixteenth birthdate at the time of commission of the alleged offense, no Juvenile Division proceedings are required.

(2.) An infant who commited a criminal act between 1941 and March 16, 1972, and had not reached his fourteenth birthdate on the date of the commission of the...